Details  Created: 26 May 2020

The Commission, on remittal from the Full Bench, has determined that a teacher who was found to be unfairly dismissed on medical grounds at first instance is medically fit and able to be re-employed at another school.

At first instance

At first instance, the applicant, the State School Teachers’ Union of WA (Union), alleged that its member, a teacher, was unfairly dismissed from his employment with the Department of Education on medical grounds.

The Commission at first instance concluded that if all the relevant information were available to the decision-maker, they could not have determined that the teacher was unable to work due to ill health. Commissioner Matthews considered the circumstances and decided that reinstatement or redeployment was impracticable and awarded compensation.

Full Bench

On appeal, the Full Bench found that the Commission at first instance erred in making a conclusion that the teacher was not going to work for reasons unrelated to his health.

The Full Bench also found it was in error to conclude that re-employment was impracticable because of an abnormal response by the teacher to the disciplinary process. It noted that the Commission found that the teacher’s reasons for not working was ‘dramatic and exaggerated’ and was ‘unreasonable, and an emotional one, not a medical one’. The Full Bench found that this was not a conclusion open to the Commission on the evidence.

The Full Bench allowed the Union’s appeal and ordered that the decision at first instance be suspended and the matter remitted to the Commission for further hearing and determination on the practicability of reinstatement or reemployment in consideration of the employee's current state of health and whether he ought to be reemployed at another school.

On remittal

On remittal, Commissioner Matthews considered the practicability of the teacher being re-employed at another school in consideration of the teacher’s capacity to return to work. The Commissioner also noted that the remittal was only in relation to the remedy, not the fairness of the dismissal itself.

The Commission found, on the expert medical evidence provided a psychiatrist, that the teacher is fit for work in another school. The Commissioner rejected the respondent’s contentions that the medical evidence be disallowed as the applicant had not run a case at first instance that contended the teacher was fit for work, so long as it was not at the original school.

The Commissioner also found that the compensation awarded to the teacher be reduced because of his failure to mitigate loss and failure to discover documents at first instance.

The decision can be read here.